Attorney Guide Dividing Military Reserve Early Retirement Pay

© 2015 Brian Mork, Ph.D. [Rev 2.0]

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Introduction

When dividing the marriage asset of military retirement pay due to divorce, the mathematical formulas are very similar for a Reserve retirement compared to an Active Duty retirement.  This web page describes military Reserve (or National Guard) specific issues and there is one important difference: Early Retirement pay.  If your concerns are more general in nature, see other web pages describing Dual Coverture methods, Promotion Enhancement, or Area Method  calculations (with example divisions).

In almost all jurisdictions, dividing Reserve early retirement is an issue of first impression.  If you are a client going through a divorce, download "Attorney Instructions - Division of Reserve and Active Duty Military Retirement" from the references below and make it available to your attorney and your court along with these web pages.  The idea is that you want to get this information in front of your judge - first to help him/her understand something that they have little experience with, and secondly, you want the facts and explanations in the court records in case of an appeal.

If you are an attorney, then this web page, it's sister pages referenced above, and the reference links at the bottom of all pages, are a gold mine.  Forget the confusion; these pages explain what you need to know, with proper legal and citation "hooks" to customize the information for your case.  You will find that if a court is familar with military retirements, it is probably limited to Active Duty Retirement.  Beyond that, a court must understand Reserve Retirements.  Beyond that, a court must understand Reserve Early Retirement. These are significant steps.


Background about Early Retirement


Discussions about military retirement typically center around the the amount of military payments to be received each month by the non-military ex-spouse.  If there is possibility for future military promotions after the divorce, you should read about how to properly do calculations to handle promotion enhancements after divorce.

In contrast to those issues, the salient point on this web page is that a military retirement asset value is the multiplication of the amount each month multiplied by which months payment is received.  Up until 2008, this distinction has not mattered.

As of January 2008, a new Federal Law offers retention bonuses to military Reservists, in the form of an additional and distinct retirement. For a Reserve military retirement, there are now two quantifiable different military retirements that have to be individually assessed to be a marital asset or not.  The two retirements do not comingle in any way, and the new retirement does not modify or affect the traditional retirement in any way.  Retirement pay paid after a Reserve military member turns 60 is the traditional retirement that courts may be familiar with.  For a Reservist, the new 2008 law authorizes retirement payments before age 60.  Specifically, for every 90 days of additional days of duty done after 28 January 2008, three additional monthly retirement checks are earned.  In the simplest case, if a marriage ended before 28 January 2008, the before-age-60 payments are not a marital assets at all and are not subject to division.

The default position of DFAS is to divide any and all retirement checks.  A division order must specifically address a Reserve early retirement, or DFAS assumes it is to be divided the same.  Silence on the part of division orders may create inequity against the class of Reserve retirees who did duty both before and after the date of the new law.  A Depart of Defense Congressional report says it clearly in a way consistent with every state law:

"[Giving ex-spouse a portion of post-marriage benefit] of military retired pay is inconsistent with the treatment of other marital assets in divorce proceedings—only those assets that exist at the time of divorce or separation are subject to division. Assets that are [actively] earned after a divorce are the sole property of the party who earned them."

A 2009 State of Michigan Appellate court also ruled that retention bonuses earned after the divorce belong only to earner of the bonuses.  The court (12/29/2009 Skelly v. Skelly, No 287127) overturned a lower court ruling and clarified that retention bonuses earned or accrued after the marriage are not divisible property.  Reserve retirement payments before age 60 are precisely a retention bonus earned only after 1/28/2008.

The new Federal law has big implications on how the military retirement division order should be written if any portion of military duty spans across 28 January 2008.

In almost all jurisdictions, early retirement will be an issue of first impression.  The rest of this document presents arguments for or arguments againt dividing the early retirement asset.  If you want to know how to actually do it, please refer to the separate web pages for Dual Coverture, Area Method, or Hypothetical Method.

Discussion


Regardless of when a military Reserve member enters retired status, 10 USC 12371(a) authorizes retirement payments only at and after military member age 60.  However, as of January 2008, 10 USC 12731 authorizes a Reservist to receive additional payments before age 60 by working duty days after January 28th, 2008.  An Air Force news release explains this new law.  Title 10 USC Section 12731(f), describes this new, separate, and distinct, asset.

With the prior traditional Retirement military retirement, there is a commingling of effect of marriage duty years such that years are treated equally and prorated for division based on a count of how many military years were also married years—this is the “coverture fraction” allowed by the USFSPA.  Comingled means that a date of duty could be moved to any other period of the marriage and the total retirement value does not change.  This is not true when moving a duty date across the 28 January 2008 boundary, and therefore demonstrates that the two retirements are not combinable or comingleable.

It’s important to note 10 USC 12731(f)(2)(A) clearly and quantifiably defines the receipt of retirement pay before age 60 dependent if and only if military duty was done January 28th, 2008 and after. Because of the hard date in the sand, there is no commingling, and USFSPA does not authorize "reaching across" this date and combining retirements.  The new retirement benefit is properly divided as a separate asset. Points earned before January 28, 2008 create coverture fractions for payments after age 60. Points earned after Janaury 28, 2008 create coverture fractions for before age 60 payments.  If a marriage ends before January 28th, no division should occur for before age 60 payments.

In summary, Reserve retirement consists of two separate and distinct, and not comingled retirements, which may require two coverture fractions if one of them is not zero.
  1. Retirement earned after 1/28/08 --> retirement payments before military member age 60.
  2. Retirement earned before 1/28/08 ---> retirement payments after military member age 60.

Argument For and Against


The rest of this document discusses why early retirement earned after a marriage should not be divided.  If you want to know how to actually do it, please refer to another web page on Dual Coverture or Area Method.

One could argue in a Talmudic way that the military member is re-using shared marital points to calculatethe before-age-60 benefit, or that additional benefit is "based on" the marital portion of the benefit, and therefore the ex-spouse should “get a cut” of the benefit. This argument lacks viability in the face of a division order that awards division of military retirement benefit "accrued during the marriage" or "earned during the marriage".

The legally undefined and vague concept of "based on" logic is often introduced to invade the other retirement value.  However, this logic is faulty because it would lead to absurd and inequitable ramifications if applied to each spouse equally (see numbered points below).  In fact, most state laws explicity say ex-spouse payments are to "based on" assets earned during marriage.

A correct litmus test regarding the division of retirement asset should ensure ex-spouse value does not go up or down based on anything either party does after the divorce, and this includes earlier payments.  Remember this is asset division, not income division.  An marital (shared) asset divided at divorce should not go up in value because one party does more work.  The shared marital asset does increase in dollar amount while parties wait for payment becuase of passive time-value-of-money.  However, actively earned increase in value after divorce belongs only to the person who earned it. If this is not true with your proposal, it should be corrected.

Parlaying duty credit, that at the time of divorce is shared, into higher value via additional duty is a legitimate military member solo effort, and does not invoke divisibility of the higher value enhancement.  Duty credit or duty points are worth nothing; it is the use of the points that creates value and Early Retirement creates such a new use. 

Here are multiple reasons why the separate and non-comingled asset value in the form of early retirement payments must not automatically be lumped in with the traditional retirement:
  1. Allowing benefits earned and accrued after the marriage to be classified as a marital asset because they are "based on" or "calculated from" marital property is untenable because the idea would a) need to be applied with symmetry to both spouses, and b) never allow lives to separate, dishonoring the very definition of divorce.  Examples:


  2. The additional value of retirement points (payments before age 60) earned by the military member after the marriage in no way decreases the prior value to the ex-spouse and therefore should not be encumbered. 5 USC 8332(c)(4) is an example of how ex-spouse interests are already protected by Federal Law:  if the post age 60 retirement value were decreased (it is not), then the ex-spouse may invade the additional or dual-use value.  However, Federal law limits how much the additional value can be invaded to the extent required to make their original point value whole.  In the case of before-age-60 benefit, the point value retained by the ex-spouse is NOT decreased, so invasion of the new benefit is limited to zero.  Even if invasion of pre-age 60 payments were appropriate, Federal law requires that it should be restored to only the original value, which means potentionally unlimited additional value is NOT to be divided. This statute demonstrates the Federal intent that enhanced point value actively earned after the marriage belongs entirely to the military member doing the work except in the case where it decreases ex-spouse payments, and then it is to be shared only to the extent that restores original value.  Reserve Early retirement never affects the original, and is therefore not to be invaded or encumbered.

  3. The ex-spouse contributes no partnership to the early payments, and therefore should expect nothing from the early payments. Because the ex-spouse contributes nothing after the marriage, that is how they should expect their payment to change: the ex-spouse value should be blind to any increases the ex-spouse is not part of.  There is one exception, where both parties are trapped by Federal law. Although the retirement asset would be ideally divided at the time of divorce (like a 401(k) or IRA), the Federal government forces both parties to wait for disbursement until after the military member retires.  Because both parties have to wait for distribution of the asset until some future time after the divorce, they are both compensated for the "time-value of money" or "cost of living adjustments" via passive annual increases of the military pay chart, to which retirement payments are indexed. Note that passive increases may be divisible, but earned active increases such as early retirement payments are not. The Area Method of division is the simplest and most lucid way to do this.

  4. Once the early retirement benefit is earned or authorized, and adjudicated to not be a marital asset, exactly how it is calculated is a private benefit or entitlement matter between the military member and employer.  The method of calculation never authorizes invasion of an asset, only how the asset is earned matters.  Additional value or dual-use value of each duty day is added solely by the work of one person after the marriage.  Therefore, the added benefit associated with the added value belongs to only that person contributing to that value. By way of anology, some military members receive a retention bonus after the marriage by signing a contract after the marriage to stay in the military for an additional number of years.  In these cases, the ex-spouse would gain no portion of that bonus, even though the military member was positioned for eligibility because of longevity including military years done during the marriage.  The new retirement is a financial retention motivation tool, obtained via a performance contract after the marriage that does not include the ex-spouse.

  5. The enhanced value of the aggregate retirement asset is created by earning more pay dates, not changing how much is paid on each pay date.  Prior USFSPA law and case precedence is about determining how much is paid to whom on each date.  According to Federal statute, the enhanced value given by the new law is quantifiable separate and distinct retirement benefit.  The ex-spouse contributed nothing toward the extra days, which create additional pay dates, not additional pay amount. Retirement payments before military member age 60 are not marital assets, so dividing them under UFSPA is inappropriate.  In the case of a marriage that ended before January 28, 2008, a court order should simply state that payments before military member age 60 are not to be divided.  When marriage and military duty span January 28, 2008, the court order should state two percentages or fractions.  One is applicable for payments before age 60 and one is applicable for payments after age 60.  Alternately, because of DFAS bureacratic limitations, division orders could choose to not address the issue with DFAS, but rather direct "overpayments" to one person or the other be returned to the rightful owner.  In a similar way, the court order may simply state payments before age 60 be returned to the rightful owner.

  6. Consider a chronologically opposite case where the military person worked solo military for years before marriage.  Courts do not recognize that ex-spouse portion is "based on" or "because of" prior solo military duty and therefore they should get less than half of the marital years.  If solo military duty before marriage does not reach into the future to reduce the division of marriage years because of a "based on" relationship, then marriage years should not reach into the future and increase the division of post-marriage years because of a "based on" relationship.   The problem is that using vague "based on" arguments is kind of like saying a person's 50th year of life is based on the fact that they completed the 40th year of life.  This logic is not allowed in the court because then the entire rest of a person's life would be divisible as marriage asset. There is no place for intentionally vague and legally undefined "based on" or "because of" language in court proceedings.

  7. The number of days retirement is received early (before member age 60) is proportional to the amount duty days after the law.  For example, twice as many days after the law earns twice as many days of retirements before age 60.  The early retirement value is not proportional to the number of duty days of shared effort before 1/28/2008, mathematically showing that they are decoupled and separate.

  8. Just becasue assets have the same name is not a reason to divide both!  The extra retirement pay dates requires no prior rank, no prior seniority, no prior duty. It is a totally separate program. It is quantifiable separable and independent, authorized by separate dates of duty, authorized by a new paragraph in the Federal statute.  Simply because the separate benefit is also colloquially called “military retirement”, courts may confuse the issue.  However, if courts do not take the time to understand and separately allocate this retirement benefit, their error is as egreggious as if they lumped all “IRAs” or all “401(k)s” or all “pensions” together just because they have the same name.  It is unconsciousable and exhibits judicial malpractice to say that a 401(k) or IRA started after the marriage should be divided simply because it's called the same name!

Rebuttal Questions and Answers


Q: Aren't before age 60 payments based on points earned while married?
A: No. The U.S. Supreme Court disallowed division of military retirement that required additional solo work contribution by the military member after divorce. Subsequently, USFSPA law allowed for division of military retirement because of co-mingling of duty dates. However, there is no co-mingling of duty dates for the distinctly separate early retirement payments. The before age-60 payments are a distinct and separate different retirement value enacted by Federal law after USFSPA. Early retirement is a distinctly different marital asset and must be divided some, all, or none, depending on marital and military activities after January 2008.

Q: Aren't the age 60 payments made higher based on commingled points?
A: No. I think you mean "calculated from" instead of "based on". Just like some DFAS divisions are calculated from Federal COLA numbers, before age 60 payments are calculated from solo duty points and dual duty points, plus other critical numbers. Points are not owned by anybody and lawful division is based on *earning* points not *calculating* with points. The before age 60 payments are calculated using duty details after January 2008. No matter how many total marriage points are earned, the before age 60 payments are zero unless marriage duty is done after January 2008. The ex-spouse is compensated for contribution during marriage because commingled points earn the spouse a higher percentage of monthly payments from the traditional age 60 retirement addressed by USFSPA.

Q: But if the divided points were absent in the calculation, wouldn't the before age 60 payments be less? 
A: If commingled marriage points were absent, then ALL payments (before and after age 60, and for both parties) would be less. This is nothing unique to payments before age 60. Ex-spouse payments are based on assets earned during marriage, and these payments are preserved and do not go up or down in value based on whether or not there are before age 60 payments. Points are not owned. The opportunity to USE those points is earned. Using points for age 60 benefit is one thing. Using points for payment prior to age 60 is a separate and distinct thing.

Based On

The phrase "based on" and "but for" cause great confusion when used with military retirements because they are legally undefined phrases. "Based on", "but for", and "provided a basis for" concepts are specifically critiqued in the Sullivan rebuttal available in the references section below.

It's important to distinguish two issues.  One is a potential debate about how a marital asset is divided.  The more important issue is whether something is a marital asset in the first place.  If an enhanced promotion benefit was "actively earned" or "accrued" without spousal contribution after the divorce, it is not a marital asset no matter what it is "based on" or how it is calculated.

The vague phrase "based on" usually means the more precise phrase "calculated from" or "calculated using" -- both of which are more useful because they have defined meaning.  Intentionally being vague is a goal only of someone trying to be inequitable. "Calculated from" is insufficient to justify division.  In fact, the claim "military member's post-divorce benefit is calculated from the ex-spouse's divisible points and therefore should be divided," is a moot point of perspective.  If true, it is equally true that "the ex-spouse's benefit is calculated from the military member's non-divisible points and therefore  should not be divided."  The reciprocity of calculation is done because that's how a military retirement is defined in Federal law, but method of calculation does not assign ownership, only participation in accruing the benefit does.

The phrase "based on" iobscures good judgment, and use of this word in military retirement divorce proceedings really means one of only two things:

1) "Based on" could mean "Accrued during".  Example: "The retirement payment increased based on additional duty done during the marriage."  In this case UFSPA law directs that retirement can be divided because there is a comingling of dates (switching dates does not affect the calculation).  Duty dates causing early retirement duty are demonstrably NOT comingled with the normal retirement duty dates because switching dates across the 1/28/2008 boundary does change retirement value, which contradicts the definition of comingled.

2) "Based on" could mean, "Derived from" or "Calculated from".   Example, "Ex-spouse wrote a book based on being married to the other person."   Book earnings are not divided even though it taps into and uses time of marriage.  Example, "DFAS Hypothetical division method is based on Cost Of Living Adjustments (COLA)."  Nothing about COLA is shared or divided just because it's in the calculation.

These two meanings create HUGE differences when dividing military benefit.  It's to the military member's benefit to be clear.  It's to the ex-spouse's benefit to be vague because without distinction, more of #2 situations can be drawn into #1. In either case, to ~intentionally~ be vague dishonors the intent of our Nation's legal system.

Proximate of Events cause Division - a More Intellectual Explanation

The January 2008 early retirement law allows Reserve military members to increase value of retirement by earning earlier additional payments, not more payment each month.  The extra value is in how MANY payments are made, not how MUCH each payment is. 

Another way of thinking about this issue is to consider the proximate cause of early retirement value increase.  When the points were earned during a marriage, both parties participated.  Latent value doesn't exist and has no value until the military member finishes a career without the marriage partnership and actually applies for retirement.  The Supreme Court ruled that latent military retirement cannot be divided.  However, in the specific and narrow case of military members with comingled duty dates, UFSPA legislation undid the applicability to military retirements by allowing that courts may (not must) divide latent value if it is specifically a military retirement.  However, at least in Michigan, one could argue that civilian latent benefits remain non-divisible per the 2009 Skelly v. Skelly Appellate course reversal mentioned above, which dealt with a latent civilian retention bonus that was ordered not divisible.

The time sequence of events causing divisibility of military latent benefits in the eyes of UFSPA is:

First, laws since the early 20th century define how much monthly retirement payment is made
Then, retirement points are accrued during a marriage, followed by divorce
Then, latent retirement payments are vested or converted into earned retirement
Because the marriage accrual of value in the 2nd step is proximate to the developed retirement in the 3rd step, developed value becomes divisible.

However, with early retirement payments, the proximate relationship is reversed:

First, retirement points are accrued during a marriage, followed by divorce
Then, new laws in Jan 2008 create additional payments but do not change the amount of payments
Then, additional military retirement points are earned that make the payment per month go up, plus additional duty points (alone) create additional payment months.
The marriage accrual of value is NOT proximate to the developed retirement - rather the new law in the 2nd step is proximate to the developed value in the 3rd step - so developed value is not divisible.  Latency did not exist during the marriage. so USFSPA does not apply.  The Supreme Court ruling stands.

In the first case, the law and the earning of credit span *across* the marriage.  In the second case, the marriage was terminated and THEN a new law was created and a benefit was earned under the new law.  The marriage is NOT proximate to earning the benefit and therefore the benefit is not divisible.  It is very rare that new laws reach retroactively and change history.  For example, UFSPA laws did not attempt to do this.  In a similar way the January 2008 law should not reach retroactively into the marriage.  Graphically,

When in this order: ( Law - Marriage - Accrual ) ---> Division
When in this order: Marriage - ( Law - Accrual )---> No Division

If there is any doubt to this conclusion, consider contract law as an analogy.  If the marriage is inserted into the "retirement contract" between the Federal government to a military member, then the ex-spouse shares in that contract.  This is shown in parantheses above.  However, the early retirement law is a new "retirement contract" meant to motivate future duty of Reservists - causing them to do more duty for early retirement pay.  The new contract comes into existence only after the marriage is history.  The new contract is exclusive of marriage, and does not change or damage or modify the divisible retirement in any way, and so the ex-spouse has no third-party interest or claim into the additional value, regardless of how it is calculated.

In summary, although early retirement monthly amount is calculated using the same method to yield a fraction or percentage, the calculation process is not relevant to determine divisibility.  Early retirement payments earned and accrued outside of a marriage are not divisible  because marriage is chronologically outside the scope of the retention bonus contract.


Practical Legal Implementation

For those members who were married and did military duty before 1/28/08 and have earned or may in the future earn this retirement enhancement by earning points after 1/28/08, a decision must be made as to whether payments before age 60 are a divisible asset or an un-divisible asset.  The answer to this question would depend on the period of marriage, divided into 3 possibilities:

1.    If the marriage was entirely before 1/28/08, then the before age-60 retirement payments were earned only after the marriage, so the benefit would be retained 100% by the military member.  No matter what formula is used to determine a division percentage, the division order must specify that no division occurs until member age-60.  Caution: If the division order is silent on this issue, all retirement payments will be incorrectly divided by DFAS, so the order must state that payment division will begin only upon the military member reaching age 60.  If DFAS will not change their payment destinations at age 60, then the division order must state that the ex-spouse return payments to the military member each month before age 60.

2.    If the marriage was entirely after 1/28/08, then the before age-60 monthly payments are divided same as after age-60 monthly payments.  Correct division will occur by not mentioning this issue at all in the order (DFAS will divide all payments the same).

3.    If the marriage spans 1/28/08, before age-60 monthly payments need to be prorated with a different coverture fraction than done with the age-60 and after payments. The numbers for the coverture fractions for the two retirements will be different, so two formula paragraphs must be written for DFAS to use.  The formula paragraphs should reflect Area Method (also called "DCV") to include corrections for possible future military rank promotions. 
 

Conclusion

To pursue equity, family law courts must recognize the new Reserve "early" military retirement as a separate and distinct entity.  It may or may not be a divisible marriage asset, or may be a partial marital asset.  If this issue is not addressed in the original division order, every Reserve military member who earns a "before age 60 benefit" (possibly long after the divorce) will be back in court asking the court to address this issue in compliance with the original intent of the division order.  This is consistent with the 2001 DoD USFSPA report to congress which says:

"[Giving ex-spouse a portion of post-marriage benefit] of military retired pay is inconsistent with the treatment of other marital assets in divorce proceedings—only those assets that exist at the time of divorce or separation are subject to division. Assets that are [actively] earned after a divorce are the sole property of the party who earned them."


References

  1. DFAS "Guidance on Dividing Military Retired Pay", March 2014, 25 pdf pages with bad formatting, 121 KB pdf. (DFAS.mil, increa copy).
    1. Older copy April 2012, 20 pgs, 119 KB pdf. (DFAS.mil, increa copy).
    2. Older copy "Attorney Instructions - Dividing Military Retired Pay", April 2001, 19 pgs, 74kb pdf. (DFAS.mil, increa copy).
  2. DoD Report to Committee on Armed Services of the US Senate and House of Representatives, 1998, 84 pgs, 279 KB pdf. (Defense.gov, increa copy)
  3. Attorney Instructions - Division of Reserve and Active Duty Military Retirement (increa copy).
  4. Division of Blog post Dual Coverture is better than DFAS Hypothetical Method, February 2011
  5. "Reservists may qualify for early retired pay," www.afrc.af.mil news release (increa copy), 24 Feb 2009.

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This article originally appeared on the Increa.com blog.  The shell of this expanded document was created using AbiWord under the Linux Gnome desktop. Content was edited using Kompozer. (c) 2015 by Brian Mork.